Last updated: May 03. 2014 12:10AM - 2687 Views
By - elewis@civitasmedia.com

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Luzerne County prosecutors are prohibited from using Joseph Derhammer’s “silence” against him at his double homicide trial.

Prosecutors wanted to use Derhammer’s silence as evidence of guilt in not asking authorities about the welfare of his former girlfriend, Nancy Kostelnick, 48, and her 23-year-old daughter, Carolyn Kostelnick.

The two women died from smoke inhalation in a fire at their house at 46 Chester St., Wilkes-Barre, on April 13, 2009. Derhammer, 43, is accused of intentionally setting the blaze in retaliation of Nancy Kostelnick ending their relationship and throwing him out of the house on April 1, according to the criminal complaint.

Prosecutors appealed to the state Superior Court a ruling by Luzerne County Judge Joseph Sklarosky Jr. that prohibited Derhammer’s lack of inquiry about Nancy and Carolyn’s welfare to be used as evidence.

Derhammer’s lawyers, Thomas Marsilio and Mark Bufalino, fought to have the “silence” thrown out.

As firefighters battled the blaze, Derhammer returned to the house and approached then-Deputy City Police Chief Donald Crane and asked what had happened. Derhammer identified himself as Nancy’s boyfriend.

Crane alerted city police Det. Ron Foy about Derhammer’s presence at the scene.

Derhammer was driven to police headquarters where he was told during an interview that Nancy and Carolyn had died. He was also questioned by state police investigators at the Wyoming barracks the same day.

During his time with authorities, Derhammer never asked about the welfare of the two women, prosecutors said.

It was Derhammer’s silence in not asking about Nancy and her daughter that prosecutors wanted to use as evidence of guilt during his trial.

Three judges of the Superior Court earlier this week did not issue an opinion but included Sklarosky’s written ruling to deny the appeal by prosecutors.

Sklarosky ruled that Derhammer did not give up his right to remain silent when he approached Crane and was separately interviewed by Foy and state police. Despite being read his Miranda warnings, Sklarosky said the warnings were issued “pre-arrest” and were simply gratuitous.

Derhammer denied any involvement in setting the blaze when he was questioned separately by Foy and state police.

When Derhammer voluntarily answered questions, he was not in custodial custody, Sklarosky ruled.

“Mr. Derhammer elected to speak with investigators and did not exhibit silence,” Sklarosky wrote.

It’s not a total loss for prosecutors.

Sklarosky will allow prosecutors during the trial to reference “interaction and exchanges” Derhammer had throughout his interview with Foy and state police but cautioned that Derhammer’s failure to ask about the two women is prohibited.

In a related issue, Derhammer earlier this year was granted a new trial by the Superior Court in a Megan’s Law case. He appealed his conviction in a non-jury trial that he failed to register a Park Avenue, Wilkes-Barre, address when Nancy Kostelnick threw him out of the Chester Street house in April 2009.

The state police Megan’s Law website says Derhammer was convicted in 1995 of involuntary deviate intercourse. He was sentenced to 40 to 80 months in state prison when he was convicted of the Megan’s Law registration offense.

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